[Federal Register Volume 69, Number 14 (Thursday, January 22, 2004)]
[Rules and Regulations]
[Pages 3006-3008]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1327]



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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP Houston-Galveston-03-004]
RIN 1625-AA00


Security Zone; Houston Ship Channel and Adjacent Waterways 
Between Buffalo Bayou and Morgans Point, Houston, TX

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary security zone for 
the Houston Ship Channel and all associated turning basins including a 
portion of the San Jacinto River. This security zone is needed to 
protect vessels, waterfront facilities, the public, and other 
surrounding areas from destruction, loss, or injury caused by sabotage, 
subversive acts, accidents, or other actions of a similar nature 
performed by individuals or groups reacting to current world events. 
All vessels carrying Certain Dangerous Cargoes (CDCs) are prohibited 
from entering into, departing from or moving within the security zone 
unless authorized to do so by the Captain of the Port Houston-Galveston 
or a designated representative and escorted by a Coast Guard vessel. 
Additionally, vessels desiring to anchor or moor within the security 
zone must have permission from the Captain of the Port Houston-
Galveston or a designated representative.

DATES: This rule is effective from 12:01 a.m. on December 25, 2003, 
through 6 a.m. on March 1, 2004.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket [COTP Houston-Galveston-03-004] and are 
available for inspection or copying at U.S. Coast Guard Marine Safety 
Office Houston-Galveston, 9640 Clinton Dr., Houston, TX 77029 between 8 
a.m. and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Commander (CDR) Thomas Marian, 
Commanding Officer, Vessel Traffic Service Houston/Galveston, Houston, 
TX at (713) 671-5164.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing an NPRM and under 5 U.S.C. 553(d)(3) 
good cause exists for making this rule effective less than 30 days 
after publication in the Federal Register. National security and 
intelligence officials continue to warn that future terrorist attacks 
against the United States interests are likely. Publishing an NPRM and 
delaying the rule's effective date would be contrary to public interest 
because immediate action is needed to protect vessels, waterfront 
facilities, and the public from destruction, loss, or injury due to 
sabotage or other subversive acts performed by individuals or groups 
reacting to current world events.

Background and Purpose

    On September 11, 2001, terrorists attacked both towers of the World 
Trade Center and the Pentagon. The President has continued the national 
emergencies that he declared following those attacks (68 FR 53665, Sep. 
10, 2003, continuing the emergency declared with respect to terrorist 
attacks; 68 FR 55189, Sep. 18, 2003, continuing emergency with respect 
to persons who commit, threaten to commit or support terrorism). The 
President also has found pursuant to law, including the Magnuson Act 
(50 U.S.C. 191, et seq.), that the security of the United States 
continues to be endangered following those terrorist attacks (E.O. 
13273, 67 FR 56215, Sep. 3, 2002, security of U.S. endangered by 
disturbances in its international relations and such disturbances 
continue to endanger such relations).
    In response to those terrorist acts and current international 
events, heightened awareness for the security and safety of all 
vessels, ports, and harbors is necessary. This security zone is needed 
to protect vessels, waterfront facilities, the public, and other 
surrounding areas from destruction, loss, or injury caused by sabotage, 
subversive acts, accidents, or other actions of a similar nature 
performed by individuals or groups reacting to current world events.

Discussion of Rule

    The Captain of the Port Houston-Galveston is establishing a 
temporary security zone for the Houston Ship Channel between Morgans 
Point (that portion of the Houston Ship Channel north and west of a 
line drawn between Houston Ship Channel Lights 89A and 90A) and the 
entrance of Buffalo Bayou and adjoining waterways. This security zone 
is part of a comprehensive port security regime designed to safeguard 
human life, vessels, and waterfront facilities against sabotage or 
terrorist attacks.
    All vessels carrying or controlling vessels carrying CDCs are 
prohibited from entering, leaving, or moving within the security zone 
unless authorized by the Captain of the Port Houston-Galveston or 
designated representative and escorted by a Coast Guard vessel. To 
minimize the potential for vessels transporting CDCs to be delayed 
while waiting for a Coast Guard escort, it is highly recommended that 
those vessels contact the COTP Houston-Galveston at least four hours 
prior to the anticipated time they intend to enter, depart or move 
within the security zone. Additionally, it is strongly encouraged that 
vessels carrying or controlling vessels carrying CDCs plan their 
transits into, out of, and through the security zone to occur between 8 
a.m. and 6 p.m. daily as Coast Guard escort resources are limited 
during night-time periods. In Houston, vessels can contact the COTP 
through Vessel Traffic Service Houston/Galveston on VHF Channel 5A, by 
telephone at (713) 671-5103 or by facsimile at (713) 671-5159.
    This rule is effective from 12:01 a.m. on December 25, 2003, 
through 6 a.m. on March 1, 2004.

Regulatory Evaluation

    This rule is not a ``significant regulatory action'' under section 
3(f) of Executive Order 12866, Regulatory Planning and Review, and does 
not require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order. It is not ``significant'' under the 
regulatory policies and procedures of the Department of Homeland 
Security (DHS).
    While vessels carrying or controlling another vessel carrying CDCs 
will need authorization to transit the zone, the Coast Guard expects 
minimal interference with or delay to their passage. Proactive measures 
that vessels carrying or controlling vessels carrying CDCs can take to 
minimize the potential for delays to occur are noted within this 
preamble. Notifications to the marine community will be made through 
broadcast notice to mariners.
    This security zone is temporary in nature. The Coast Guard will 
issue an NPRM should it consider making this rule permanent.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit

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organizations that are independently owned and operated and are not 
dominant in their fields, and governmental jurisdictions with 
populations of less than 50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will 
not have a significant economic impact on a substantial number of small 
entities. This rule may affect the following entities, some of which 
may be small entities: the owners or operators of vessels intending to 
transit the Houston Ship Channel and all associated turning basins 
including that portion of the San Jacinto River from its mouth north to 
the Interstate 10 highway bridge, bounded by a line drawn between 
Houston Ship Channel Light 89A (LLNR-23347) and Houston Ship Channel 
Light 90A (LLNR-23350) west to the T & N Rail Road Swing Bridge at the 
entrance to Buffalo Bayou, including all waters adjacent to the ship 
channel from shoreline to shoreline and the first 1000 yards of 
connecting waterways with the exception of the San Jacinto River as set 
forth above between 12:01 a.m. on December 25, 2003, through 6 a.m. on 
March 1, 2004. This rule will not have a significant economic impact on 
a substantial number of small entities for the reasons enumerated under 
the section entitled Regulatory Evaluation.
    If you are a small business entity and are significantly affected 
by this regulation please contact CDR Thomas Marian, Vessel Traffic 
Service Houston/Galveston at (713) 671-5164.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small 
entities in understanding the rule so that they could better evaluate 
its effects on them and participate in the rulemaking process.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247).

Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. Though this rule will not result in such expenditure, we do 
discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that Order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Environment

    We have analyzed this rule under Commandant Instruction M16475.1D, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded that there are no factors in this case that would limit 
the use of categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1 paragraph (34)(g) of the instruction, from further 
environmental documentation because this rule is not expected to result 
in any significant environmental impact as described in NEPA.
    A final ``Environmental Analysis Check List'' and a final 
``Categorical Exclusion Determination'' will be available where 
indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

0
2. A new temporary Sec.  165.T08-162 is added to read as follows:


Sec.  165.T08-162  Security Zone; Houston Ship Channel and adjacent 
waterways between Buffalo Bayou and Morgans Point, Houston, TX.

    (a) Location. The following area is a security zone: The Houston 
Ship Channel and all associated turning basins including that portion 
of the San Jacinto River from its mouth north to the Interstate 10 
highway bridge, bounded

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by a line drawn between Houston Ship Channel Light 89A (LLNR-23347) and 
Houston Ship Channel Light 90A (LLNR-23350) west to the T & N Rail Road 
Swing Bridge at the entrance to Buffalo Bayou, including all waters 
adjacent to the ship channel from shoreline to shoreline and the first 
1000 yards of connecting waterways with the exception of the San 
Jacinto River as set forth above.
    (b) Effective period. This section is effective from 12:01 a.m. on 
December 25, 2003, through 6 a.m. on March 1, 2004.
    (c) Definitions. As used in this section--
    (1) Certain Dangerous Cargoes or (CDCs) includes--
    (i) Division 1.1 or 1.2 explosives as defined in 49 CFR 173.50.
    (ii) Division 1.5D blasting agents for which a permit is required 
under 49 CFR 176.415 or, for which a permit is required as a condition 
of a Research and Special Programs Administration exemption.
    (iii) Division 2.3 ``poisonous gas'', as listed in 49 CFR 172.101 
that is also a ``material poisonous by inhalation'' as defined in 49 
CFR 171.8, and that is in a quantity in excess of 1 metric ton per 
vessel or barge.
    (iv) Division 5.1 oxidizing materials for which a permit is 
required under 49 CFR 176.415 or, for which a permit is required as a 
condition of a Research and Special Programs Administration exemption.
    (v) A liquid material that has a primary or subsidiary 
classification of 6.1 ``poisonous material'' as listed in 49 CFR 
172.101 that is also a ``material poisonous by inhalation'', as defined 
in 49 CFR 171.8 and that is in a bulk packaging, or that is in a 
quantity in excess of 20 metric tons per vessel or barge when not in a 
bulk packaging.
    (vi) Class 7, ``highway route controlled quantity'' radioactive 
material or ``fissile material, controlled shipment'', as defined in 49 
CFR 173.403.
    (vii) Bulk liquefied chlorine gas and Bulk liquefied gas cargo that 
is flammable and/or toxic and carried under 46 CFR 154.7.
    (viii) The following bulk liquids--
    (A) Acetone cyanohydrin,
    (B) Allyl alcohol,
    (C) Chlorosulfonic acid,
    (D) Crotonaldehyde,
    (E) Ethylene chlorohydrin,
    (F) Ethylene dibromide,
    (G) Methacrylonitrile,
    (H) Oleum (fuming sulfuric acid), and
    (I) Propylene oxide.
    (2) CDC Vessel means any vessel carrying or controlling another 
vessel that is carrying CDCs.
    (d) Regulations. (1) Under Sec.  165.33, entry into, departure 
from, and movement within this zone by a CDC vessel is prohibited 
unless authorized by the Captain of the Port (COTP) Houston-Galveston 
or designated representative and conducted with a Coast Guard vessel 
escort. CDC vessels desiring to remain within the zone while moored or 
at anchor are prohibited from doing so without prior authorization from 
the COTP Houston-Galveston or designated representative.
    (2) CDC vessels must request permission to enter into, depart from, 
move within, or remain in the security zone described in paragraph (a) 
of this section by contacting Vessel Traffic Service (VTS) Houston/
Galveston on VHF channel 5A, by telephone at (713) 671-5103, or by 
facsimile at (713) 671-5159.
    (3) To avoid delays while waiting for a Coast Guard escort to 
arrive on scene, CDC vessels should contact VTS Houston/Galveston on 
VHF channel 5A, by telephone at (713) 671-5103, or by facsimile at 
(713) 671-5159 at least 4 hours prior to the time the CDC vessel 
anticipates entering into, departing from, or moving within the 
security zone. Additionally, as escort resources are limited during 
nighttime periods, it is highly recommended that CDC vessels only plan 
to transit into, out of, or through the security zone between 8 a.m. 
and 6 p.m. daily.
    (4) All persons and vessels must comply with the instructions of 
the Captain of the Port Houston-Galveston and designated personnel. 
Designated personnel include commissioned, warrant, and petty officers 
of the U.S. Coast Guard.

    Dated: December 24, 2003.
Richard M. Kaser,
Captain, U.S. Coast Guard, Captain of the Port Houston-Galveston.
[FR Doc. 04-1327 Filed 1-21-04; 8:45 am]
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